When must Utah courts give jury unanimity instructions in multiple-count cases? State v. Alires Explained

The Utah Court of Appeals in State v. Alires addressed a critical constitutional requirement in criminal cases involving multiple charges based on similar acts. The court held that trial counsel was constitutionally ineffective for failing to request a jury instruction requiring unanimous agreement on the specific act underlying each count of conviction.

Background and Facts

Alires was charged with six counts of aggravated sexual abuse of a child based on alleged inappropriate touching during his daughter’s sleepover. A friend testified that Alires touched her and his daughter multiple times during a brief period while attempting to “lighten the mood” after an argument. The information charged six identically-worded counts without distinguishing which specific acts corresponded to each charge. The jury convicted on two counts and acquitted on four others.

Key Legal Issues

The central issue was whether trial counsel’s failure to request a unanimity instruction constituted ineffective assistance. Under Utah’s constitutional requirement for unanimous verdicts, jurors must agree not only that a defendant is guilty, but must unanimously agree on the specific acts forming the basis for each distinct count.

Court’s Analysis and Holding

The court applied the two-pronged Strickland test for ineffective assistance of counsel. First, the court found counsel’s performance objectively unreasonable, citing State v. Saunders for the principle that each unlawful touch constitutes a separate offense requiring jury unanimity as to the specific criminal act. The court distinguished this from cases involving alternative theories of the same offense, noting that each prohibited touch under the sexual abuse statute represents “alternative actus reus elements.”

For prejudice, the court found the evidence was not overwhelming and contained significant conflicts. Two witnesses denied inappropriate touching occurred, while the complaining witness described eight separate touches. The jury’s own question during deliberations—asking for “clarification on how the counts work”—demonstrated the instruction’s absence had a “palpable impact” undermining confidence in the verdict.

Practice Implications

This decision reinforces that Utah’s Unanimous Verdict Clause requires more than general agreement on guilt. When prosecuting or defending multiple counts of the same offense based on distinct acts, practitioners must address unanimity requirements. The State can either elect which specific acts support each charge, or the court must instruct jurors to unanimously agree on the same underlying act for each count. The court noted that retrial might be barred by double jeopardy where conviction and acquittal counts cannot be distinguished, leaving this question for future determination.